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Freedom of the press in the United States

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Constitutional law
of the United States
Overview
Principles
Government structure
Individual rights
Theory

Freedom of the press in the United States is legally protected by the First Amendment to the United States Constitution.

History

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Thirteen Colonies

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Further information:  Early American publishers and printers

In the Thirteen Colonies, before the signing of the Declaration of Independence, newspapers and works produced by printing presses were in general subject to a series of regulations. British authorities attempted to prohibit the publication and circulation of information of which they did not approve, and often levied charges of sedition and libel as a means of controlling printing presses.[1][2][3]

One of the earliest cases concerning freedom of the press occurred in 1734. In a libel case against The New York Weekly Journal publisher John Peter Zenger by British governor William Cosby, Zenger was acquitted and the publication continued until 1751. At that time, there were only two newspapers in New York City and the second was not critical of Cosby's government.[4][5]

U.S. Constitution

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The First Amendment permits information, ideas and opinions without interference, constraint or prosecution by the government.[6][7] It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.

Early federal laws

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In 1798, eleven years after adoption of the Constitution and seven years after ratification of the First Amendment, the governing Federalist Party attempted to stifle criticism with the Alien and Sedition Acts. According to the Sedition Act, making "false, scandalous and malicious" statements about Congress or the president (but not the vice-president) was a crime; Thomas Jefferson, a Democratic-Republican, was vice-president when the act was passed. These restrictions on the press were very unpopular, leading to the party's reduction to minority status after 1801, and eventual dissolution in 1824. Jefferson, who vehemently opposed the acts, was elected president in 1800 and pardoned most of those convicted under them. In his March 4, 1801, inaugural address, he reiterated his longstanding commitment to freedom of speech and of the press: "If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it."[8]

19th century

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In mid-August 1861, four New York City newspapers (the New York Daily News, The Journal of Commerce, the Day Book and the New York Freeman’s Journal) were given a presentment by a U.S. Circuit Court grand jury for "frequently encouraging the rebels by expressions of sympathy and agreement". This began a series of federal prosecutions during the Civil War of northern U.S. newspapers which expressed sympathy for Southern causes or criticized the Lincoln administration. Lists of "peace newspapers", published in protest by the New York Daily News, were used to plan retributions. The Bangor Democrat in Maine, was one of these newspapers; assailants believed part of a covert Federal raid destroyed the press and set the building ablaze.[9] These actions followed executive orders issued by President Abraham Lincoln; his August 7, 1861, order made it illegal (punishable by death) to conduct "correspondence with" or give "intelligence to the enemy, either directly or indirectly".[10]

20th century

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World War I

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The Espionage Act of 1917 and the Sedition Act of 1918, which amended it, imposed restrictions on the press during wartime. The acts imposed a fine of $10,000 and up to 20 years' imprisonment for those publishing "... disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag ..."[11] In Schenck v. United States (1919) the Supreme Court upheld the laws, setting the "clear and present danger" standard. Brandenburg v. Ohio (1969) revised the clear-and-present-danger test to the significantly less-restrictive "imminent lawless action" test.

Near v. Minnesota

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The 1931 U.S. Supreme Court decision Near v. Minnesota recognized freedom of the press by roundly rejecting prior restraints on publication, a principle that applied to free speech generally in subsequent jurisprudence. The court ruled that a Minnesota law targeting publishers of malicious or scandalous newspapers violated the First Amendment (as applied through the Fourteenth Amendment).

Branzburg v. Hayes

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Freedom of the press was described in 1972's Branzburg v. Hayes as "a fundamental personal right", not confined to newspapers and periodicals.[12] In Lovell v. City of Griffin (1938),[13] Chief Justice Charles Evans Hughes defined the press as "every sort of publication which affords a vehicle of information and opinion."[14] This right has been extended to newspapers, books, plays, movies, and video games.[15]

Associated Press v. United States

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Associated Press v. United States (1945) dealt with media cooperation[16] and consolidation. The court held that the AP violated the Sherman Antitrust Act by prohibiting the sale or proliferation of news to nonmember organizations and keeping nonmembers from joining; the AP bylaws constituted restraint of trade, and the fact that AP had not achieved a monopoly was irrelevant. The First Amendment did not excuse newspapers from the Sherman Antitrust Act. News, traded between states, counts as interstate commerce and is subject to the act. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests (326 U.S. 20[clarification needed]). Justice Hugo Black wrote, "The First Amendment ... rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public ... Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not".[17]

New York Times Co. v. Sullivan

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In New York Times Co. v. Sullivan (1964), the Supreme Court ruled that when a publication involves a public figure, to support a suit for libel the plaintiff bears the burden of proving that the publisher acted with actual malice: knew of the inaccuracy of the statement or acted with reckless disregard of its truth.

Greenbelt Cooperative Publishing Association, Inc. v. Bresler

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Main article: Greenbelt Cooperative Publishing Ass'n, Inc. v. Bresler

In 1970, the U.S. Supreme Court ruled that a news organization couldn't be sued over the use of "rhetorical hyperbole". The usage in question was when quoting eyewitnesses, but the court ruled that, even if it hadn't, to call it libel "would subvert the most fundamental meaning of a free press".

New York Times Co. v. United States

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Main article: New York Times Co. v. United States

In 1971, the Supreme Court upheld the publication of the Pentagon Papers.

Hazelwood v. Kuhlmeier

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In Hazelwood v. Kuhlmeier (1988), the Supreme Court upheld the right of a school principal to review (and suppress) controversial articles in a school newspaper funded by the school and published in its name.

21st century

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Although it had been uncertain whether people who blog or use other social media are journalists entitled to protection by media shield laws,[18] they are protected by the Free Speech and Free Press Clauses (neither of which differentiates between media businesses and nonprofessional speakers).[6][7][19] This is further supported by the Supreme Court, which has refused to grant increased First Amendment protection to institutional media over other speakers;[20][21][22] In a case involving campaign finance laws, the court rejected the "suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by" non-institutional-press businesses.[23]

In United States v. Manning (2013), Chelsea Manning was found guilty of six counts of espionage for furnishing classified information to WikiLeaks.

Stop Online Piracy Act

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Main articles: Stop Online Piracy Act, PROTECT IP Act, and Protests against SOPA and PIPA

On October 26, 2011, the Stop Online Piracy Act, which opponents said would threaten free speech and censor the Internet, was introduced to the U.S. House of Representatives. White House Press Secretary Jay Carney said that President Obama "[would] not support legislation that reduces freedom of expression."[24] The bill was shelved in 2012 after widespread protests.[25]

Obsidian Finance Group, LLC v. Cox

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Main article: Obsidian Finance Group, LLC v. Cox

On 2014, blogger Crystal Cox accused Obsidian and Kevin D. Padrick of corrupt and fraudulent conduct. Although the court dismissed most of Cox's blog posts as opinion, it found one post to be more factual in its assertions (and, therefore, defamatory).

It was ruled for the first time,[26][27] by the Court of Appeals for the Ninth Circuit,[28] that a blogger is entitled to the same free speech protection as a journalist and cannot be liable for defamation unless the blogger acted negligently.[29] In the decision, journalists and bloggers are equally protected under the First Amendment[26] because the "protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others' writings, or tried to get both sides of a story."[28]: 11–12 [30]

Ranking and polling of United States press freedom

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2024 World Press Freedom Index[31]
  Good: 85–100 points
  Satisfactory: 70–85 points
  Problematic: 55–70 points
  Difficult: 40–55 points
  Very serious <40 points
  Not classified

In 2022, the U.S. ranked 42nd in the Reporters Without Borders Press Freedom Index.[32] This is an overall measure of freedom available to the press, including a range of factors including government censorship, control over journalistic access, and whistleblower protections. The U.S.'s ranking fell from 20th in 2010 to 49th in 2015, before recovering to 41st in 2016.

Freedom House, a U.S.-based watchdog organization, ranked the United States 30th out of 197 countries in press freedom in 2014.[33] Its report praised the constitutional protections given American journalists and criticized authorities for placing undue limits on investigative reporting in the name of national security. Freedom House gives countries a score out of 100, with 0 the most free and 100 the least free. The score is broken down into three separately-weighted categories: legal (out of 30), political (out of 40) and economic (out of 30). The United States scored 6, 10, and 5, respectively, that year for a cumulative score of 21.[34]

In a Pew Research survey of 11,889 U.S. journalists conducted from February 16 to March 17, 2022, 57% stated that they were "extremely" or "very" concerned about the prospect of press restrictions being imposed in the United States.[35]

U.S. Press Freedom Tracker

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U.S. Press Freedom Tracker
Type of businessPress freedom advocates
Type of site
Data gathering and reporting
Founded2017[36]
Country of originUnited States
EditorKirstin McCudden, Managing editor
IndustryJournalism
URLpressfreedomtracker.us

The U.S. Press Freedom Tracker documents press freedom violations in the United States.[37]

The tracker was founded in 2017 and was developed from funds donated by the Committee to Protect Journalists.[36][37] It is led by the Freedom of the Press Foundation and a group of organizations. Its purpose is "to provide reliable, easy-to-access information on the number of press freedom violations in the United States – from journalists facing charges to reporters stopped at the U.S. border or asked to hand over their electronics."[38]

The database is supported by a steering committee of Committee to Protect Journalists and twenty press freedom groups. It was developed to document the increasing rate of assaults, seizures of equipment, arrests, and stops at the border.[37] It tracks the type of law enforcement—local, state, and the National Guard—and the nationality of the journalists.[39] The tracker is maintained and findings are published by the Freedom of the Press Foundation.[39][40][41]

Violence against journalists in the U.S.

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See also: List of journalists killed in the United States

According to the U.S. Press Freedom Tracker, in 2020, approximately 300 journalists were assaulted in the U.S. (primarily by law enforcement) and at least 110 were arrested or criminally charged in relation to their reporting.[42]

On September 3, 2022, investigative journalist Jeff German of the Las Vegas Review-Journal was stabbed to death outside his home.[43] Police arrested Clark County Public Administrator Robert Telles on suspicion of murdering German for his reporting on Telles.[44]

See also

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References

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  1. ^ Eldridge, Journal, 1995, p. 337
  2. ^ Thomas, 1847, Vol I, p. lxvii
  3. ^ Nelson, 1959, p. 160
  4. ^ Wroth, 1938, p. 176
  5. ^ Olson, Alison. “The Zenger Case Revisited: Satire, Sedition and Political Debate in Eighteenth Century America.” Early American Literature 35, no. 3 (2000): 223–45.
  6. ^ a b "First Amendment: An Overview". | Wex Legal Dictionary / Encyclopedia. Legal Information Institute of the Cornell University. Archived from the original on July 2, 2021. Retrieved April 18, 2014.
  7. ^ a b McConnell, Michael W. (November 2013). "Reconsidering Citizens United as a Press Clause Case". The Yale Law Journal. 123 2013–2014 (2 November 2013 Pages 266–529). Archived from the original on April 24, 2021. Retrieved April 19, 2014.
  8. ^ "Avalon Project". Yale Law School. Archived from the original on March 15, 2012. Retrieved March 5, 2017.
  9. ^ Words at War: The Civil War and American Journalism by David B. Sachsman, Purdue University Press, 2008.
  10. ^ "Executive Order". American Presidency Project. Archived from the original on January 25, 2018. Retrieved March 5, 2017.
  11. ^ "U.S. Espionage Act, 7 May 1918". firstworldwar.com. Archived from the original on March 2, 2012. Retrieved March 5, 2017.
  12. ^ 408 U.S. 665 (1972)
  13. ^ Lovell v. City of Griffin, 303 U.S. 444 (1938)
  14. ^ Lovell, at 452
  15. ^ Adam Liptak (June 27, 2011). "Justices Reject Ban on Violent Video Games for Children". The New York Times. Archived from the original on March 31, 2019. Retrieved April 19, 2013.
  16. ^ "Associated Press v. United States 326 U.S. 1 (1945)" Archived May 5, 2022, at the Wayback Machine, Justia. US Supreme Court. June 18, 1945. Retrieved 8 feb 2017
  17. ^ "Media Bias", Paul Ruschmann. Infobase Publishing, 2006. p. 87. Retrieved 8 feb 2017
  18. ^ Mataconis, Doug (May 28, 2013). "Bloggers, Media Shield Laws, And The First Amendment". Outside The Beltway. Archived from the original on August 12, 2013. Retrieved August 9, 2013.
  19. ^ Eugene Volokh. "The American Heritage Foundatio's Guide to the Constitution: Freedom of Speech and of the Press". The American Heritage Foundation. Archived from the original on May 12, 2020. Retrieved April 18, 2014.
  20. ^ See Bartnicki v. Vopper, 532 U.S. 514 (2001) where the Court, "draw no distinction between the media respondents and" a non-institutional respondent.
  21. ^ See Cohen v. Cowles Media Co., 501 U.S. 663 (1991) where the Court held that the press gets no special immunity from laws that apply to others, including those—such as copyright law—that target communication.
  22. ^ See also Henry v. Collins, 380 U.S. 356, 357 (1965) (per curiam) (applying Sullivan standard to a statement by an arrestee); Garrison v. Louisiana, 379 U.S. 64, 67–68 (1964) (applying Sullivan standard to statements by an elected district attorney); New York Times Co. v. Sullivan, 376 U.S. at 286 (applying identical First Amendment protection to a newspaper defendant and individual defendants).
  23. ^ First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)
  24. ^ "Texas Insider". Texas Insider. p. 1. Archived from the original on January 19, 2012. Retrieved January 19, 2012.
  25. ^ "SOPA bill shelved after global protests from Google, Wikipedia and others". The Washington Post. January 20, 2012. Archived from the original on October 21, 2012. Retrieved July 17, 2016.
  26. ^ a b Paulson, Ken (January 24, 2014). "Bloggers enjoy First Amendment protection against libel suits". First Amendment Center. Archived from the original on April 9, 2014. Retrieved February 2, 2014. In a landmark decision on Friday, a federal appellate court held for the first time that blogs enjoy the same First Amendment protection from libel suits as traditional news media.
  27. ^ Hull, Tim (January 17, 2014). "Blogger's Speech Rights Championed in the 9th". Courthouse News Service. Archived from the original on February 20, 2014. Retrieved February 2, 2014. I think it sets an important precedent that bloggers, for First Amendment purposes, have the same rights as others do, as for example the institutional media does," Volokh said in a phone interview. "There have been plenty of past cases around the circuits that point in that direction, but this is the first time that the 9th Circuit has specifically ruled on this, and this is one of the cases that has focused on bloggers. Most cases have dealt with other nonprofessional media, but this one is particularly the first clear blogging case that I know from the circuit courts.
  28. ^ a b Arthur Alarcón, Milan D. Smith, Jr., and Andrew D. Hurwitz (January 17, 2014). "United States Court of Appeals for the Ninth Circuit case Obsidian Finance Group LLC and Kevin Padrick vs. Crystal Cox (12-35238)" (PDF). United States Court of Appeals for the Ninth Circuit. United States Court of Appeals for the Ninth Circuit case. Archived (PDF) from the original on January 25, 2014. Retrieved February 2, 2014.{{cite web}}: CS1 maint: multiple names: authors list (link)
  29. ^ Levine, Dan (January 17, 2014). "Blogger gets same speech protections as traditional press: U.S. court". Reuters. Archived from the original on March 13, 2020. Retrieved February 2, 2014.
  30. ^ Hull, Tim (January 17, 2014). "Blogger's Speech Rights Championed in the 9th". Courthouse News Service. Archived from the original on February 20, 2014. Retrieved February 2, 2014.
  31. ^ "2024 World Press Freedom Index". Reporters Without Borders. 2024. Archived from the original on May 7, 2022. Retrieved May 12, 2022.
  32. ^ "United States | RSF". rsf.org. Archived from the original on July 27, 2022. Retrieved July 25, 2022.
  33. ^ "Press Freedom Rankings – Freedom House". Archived from the original on July 9, 2019. Retrieved January 15, 2015.
  34. ^ "United States – Country report – Freedom of the Press – 2014". Archived from the original on December 2, 2014. Retrieved January 15, 2015.
  35. ^ Gottfried, Jeffrey; Mitchell, Amy; Jurkowitz, Mark; Liedke, Jacob (June 14, 2022). "Journalists Sense Turmoil in Their Industry Amid Continued Passion for Their Work". Pew Research Center's Journalism Project. Archived from the original on June 14, 2022. Retrieved June 14, 2022.
  36. ^ a b McEvoy, Jemima. "A Record Number Of Journalists Were Arrested In 2020, Most Covering Racial Unrest". Archived from the original on April 22, 2021. Retrieved April 21, 2021.
  37. ^ a b c Feinberg, Ashley (August 2, 2017). "The US Press Freedom Tracker Follows Abuses of Journalists To Help Stop Them". Wired. Archived from the original on January 26, 2021. Retrieved April 21, 2020.
  38. ^ Goodman, Amy (December 29, 2017). "The Fight to Project Journalists". The Spokesman-Review (syndicated article). pp. c3. Retrieved April 22, 2021.
  39. ^ a b "'I'm getting shot': attacks on journalists surge in US protests". The Guardian. June 5, 2020. Retrieved April 21, 2021.
  40. ^ MADDEN, Pete; GURVETS, ALEX. "US Press Freedom Tracker launches with donation from 'body-slamming' congressman". ABC News. Archived from the original on April 12, 2022. Retrieved April 15, 2022.
  41. ^ Feinberg, Ashley. "A Crucial New Site Tracks Attacks on Press in the US". Wired. Archived from the original on January 26, 2021. Retrieved April 15, 2022.
  42. ^ "In 2020, U.S. journalists faced unprecedented attacks". Committee to Protect Journalists. December 15, 2020. Retrieved July 25, 2022.
  43. ^ Michelle Watson and Hannah Sarisohn (September 4, 2022). "Las Vegas police seek public's help after veteran reporter is found dead outside his home". CNN. Archived from the original on September 8, 2022. Retrieved September 8, 2022.
  44. ^ "Police arrest local official suspected of killing Las Vegas reporter Jeff German". Committee to Protect Journalists. September 8, 2022. Archived from the original on September 8, 2022. Retrieved September 8, 2022.

Sources

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Further reading

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  • Tran, Jasper (2016). "Press Clause and 3D Printing". Northwestern Journal of Technology and Intellectual Property. 14: 75.
  • Epps, Garrett and David B. Oppenheimer. Freedom of the Press: The First Amendment: Its Constitutional History and the Contemporary Debate (2008)
  • Martin, Robert W.T. The Free and Open Press: The Founding of American Democratic Press Liberty, 1640–1800 (2012).
  • Nelson, Harold Lewis, ed. Freedom of the Press from Hamilton to the Warren Court (Bobbs-Merrill Company, 1967)
  • Powe, Lucas A. The Fourth Estate and the Constitution: Freedom of the Press in America (Univ of California Press, 1992)
  • Ross, Gary. Who Watches the Watchmen?: The Conflict Between National Security and Freedom of the Press (2015)
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